Point of law: Under Section 41A to Section 41B is a sufficient guard to secure the attendance of an accused person to aid investigation in cases, where the punishability of the alleged offences does not exceed 7 years.

JUDGMENT :

1. Rule. Learned Public Prosecutor waives service of notice of rule on behalf of respondent State.

2. On 25.3.2021, an application was moved for issuance of warrant under Section 70 of Cr.P.C. against Dr. Arvindbhai Narsinhbhai Patel, Deputy Health Officer, Bodakdev Zone, Ahmedabad Municipal Corporation towards the offence registered under Section 7 of the Prevention of Corruption Act, 1988 registered at Ahmedabad City (A.C.B.) Police Station as C.R. No. 9/2020.

3. The complaint dated 3.12.2020 is filed by Dr. Dhawalkumar Narendrabhai Patel- Deputy medical administrator, CIMS Hospital, Sola Ahmedabad. The FIR is registered on 4.12.2020 against (i) Dr. Naresh Malhotra of Aditya Hospital and (ii) Dr. Arvindbhai Narsinhbhai Patel, Deputy Health Officer- North-East Zone, Ahmedabad Municipal Corporation, the present petitioner. The offence is stated to have been committed on 31.7.2020, whereby accused No.1 was arrested on 16.2.2021.

4. The facts of the case suggest that CIMS Hospital by way of Memorandum of Understanding (MOU) had entered into list of hospitals for the treatment of COVID-19 patients under reference by Government. For sanction of bills of the COVID-19 patients, they were to be produced before the Deputy Municipal Health Officer of the Municipal Corporation Health Department. Allegations are that for the sanction of the bills, approximately amounting to Rs.1,50,00,000/-, 10% of the bill amount was demanded by Dr. Naresh Malhotra of Aditya Hospital, Sola, Ahmedabad on behalf of the present petitioner. As complainant was not ready to pay the bribe money, they filed the complaint.

4.1 The A.C.B Police States that the conversation between witness Ketan Acharya and accused No.1 Dr. Naresh Malhotra is noted, which prima-facie shows that present petitioner accused No.2 Dr. Arvind Narsinhbhai Patel has demanded 10% money of the total bill, as bribe. It is alleged that the petitioner, inspite being a government employee, to take illegal monetary benefit, has made his age-old friend and batch-mate Dr. Naresh Malhotra his middle-man, and both conspired to take huge sum of money as bribe towards the payment of government money.

4.2 In the conversation between accused No.1 and Ketan Acharya, Ketanbhai says to meet the present petitioner in person, for that accused No.1 refuses to do so, saying that Dr. Arvind Patel won’t talk with him. According to Police, Accused No.1 being a private practitioner shall not call any witness and demand 10% for passing the bill.

4.3 ACB Police contended before the 5th Additional Sessions Judge, Ahmedabad (Rural) that in accordance to Section 41A of Cr.P.C., on 20.2.2021, notice was sent to the petitioner, but has failed to appear and thus has not cooperated the investigation.

4.4 On 21.2.2021, they enquired at his house, the Petitioner was not found there. His wife informed them that the petitioner had come at 10.45 p.m., by keeping the mobile phone at home, left the house informing her that he is away from house for ten days.

4.5 ACB police states that as petitioner did not remain present on 23.2.2021, they searched the house of his relatives, at Dariyapur Police Station, Kishanwadi Police Station and Vadodara City etc., requisition were given to send the accused-petitioner for investigation.

4.6 On 1.3.2021 and 2.3.2021, they found petitioner’s house lock. On 2.3.2021, again they searched him at his relatives place. On 7.3.2021, as the petitioner’s house was locked, they called his wife who asked them to see her at the office of one acquaintant, where the Police recorded the statement of petitioner’s wife and the said person.

4.7 Under these circumstances, the Police prayed for warrant under Section 70 of Cr.P.C.

5. The Petition has been filed with a prayer to issue appropriate writ, order or direction quashing and setting aside the order dated 2.4.2021 passed by the learned 5th Additional District & Sessions Judge, Ahmedabad (Rural).

6. Mr. I.H.Syed, learned Senior Counsel with Mr. Prithu Parimal,